The weather can have a huge impact on any construction project at any time of the year, resulting in significant delays and additional costs in carrying out works. For the purposes of this blog, we have considered the position under the most commonly used building contract, JCT.
Extensions of time
A contractor can claim for an extension of time where ‘exceptionally adverse weather conditions’ are encountered. What does ‘exceptional’ mean? Whilst the term is not defined, exceptionally adverse weather conditions are those which significantly exceed the long-term average for that time of year and in the location of the project. Ultimately, whether the conditions encountered are exceptional is at the discretion of the party assessing the extension of time claim. It should also be noted that the effect of the weather is to be assessed at the time the work is carried out and not when it was programmed to be carried out.
Loss & expense
However, whilst the contractor may be awarded an extension of time, the contractor will not be entitled to any loss & expense incurred as a result of ‘exceptionally adverse weather conditions’ (e.g. in repairing damaged works). Although, all risks insurance, which is obliged to be maintained for the project, should cover such damage (subject to the terms of the policy e.g. an excess being applied).
An interesting scenario may arise though where an employer has caused delay to the works which results in the contractor having to undertake the works in weather conditions materially different to those conditions anticipated at the time the contract was entered into (e.g. works being carried out in winter and not summer). In this situation, the contractor is entitled to claim for an extension of time and loss & expense where the weather affects the works.
There are a number of ways to increase the chance of a successful claim for an extension of time for exceptionally adverse weather. Firstly, for any project, records should be taken of the following:
- daily rainfall, max/min temperatures, wind speeds, etc.;
- how the works have been affected by the weather; and
- what steps were taken (if any) to mitigate the effects of the weather (together with names of personnel involved).
Secondly, where a delay has occurred (or it becomes reasonably apparent that a delay will occur) because of ‘exceptionally adverse weather conditions’ then the contractor must give written notice to the employer of the circumstances of the delay. Records of the ‘adverse weather conditions’ will provide the necessary evidence. Also, very importantly, adhere to any deadlines in which to give notice as this will ensure any claim is not time-barred.
To help contractors plan for adverse weather conditions, the Met Office has recently launched a new service called Location Based Reports. These reports allow contractors to get weather reports specific to their site location rather than the nearest weather station. So, as the weather reports would be more accurate, it could give contractors greater ability to identify potential downtime, create contingency plans and negotiate building contracts.
For more information, email firstname.lastname@example.org.